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Kim 9, Chiu 6, Us 4, Farrell 4, San Francisco 3, Hp 1, Cla 1, Madam City 1, Pri 1, The City 1, Decis 1, Hur 1, Sherif Ross Mirkarimi 1, Waggoner 1, Madam 1,
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  SFGTV    [untitled]  

    October 10, 2012
    12:00 - 12:30am PDT  

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that person's conduct does relate more to the duties of their office. so to bring sort of my answer back around, it is a fact-specific inquiry. it's an inquiry that you can't always predict the outcome of before you've seen the evidence and the facts of the case, what exactly the misconduct was, what exactly the duties are. the fact doesn't make it too vague to apply, it makes it a more nimble -- to find official misconduct where it exists and exempt misconduct is purely private and not official when the duties are not implicated. >> president chiu: you're suggesting we should think about fact specific situations where a public official has charter section 15.105(e) refers to conduct that falls below the
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standards of decency impliedly required of all public officers. how do you read that statement which seems to suggest there should be some sort of standard that is a little difficult i think for public officers of the public to completely understand, but you do suggest that even though the language refers to all public officers that, again, you believe strongly that there's a fact specific relevance to whatever the conduct is and whoever the public officer is? >> i do -- the mayor does take that position. and it's a position that is really informed by the extensive body of due process jurisprudence in the state, under which -- and again in the employee misconduct cases, it's the case that you can't just fire someone or deprive them of their property interest in their state employment -- and interest by the way is what an elected
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official does not have, he doesn't have a right to office, it's a privilege, but when you're taking away a state employee's right to their position, you do have to give them some notice, and you have to hold them to a standard of conduct that's specific to their position. nobody knows what the standard of decency for all state employees, with that minimum irreducible quantum of conduct would be. but people, in various professions, and various roles are presumed to know what the standard of conduct is that goes with their position, and that's certainly the case for someone who seeks to be a sheriff, that he should know and can be presumed to know what the standard of conduct is for a chief law enforcement officer. so although the language of the charter seems broad, it -- i mean there's certainly a good argument that it is a single
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standard. at the same time, it needs to be interpreted -- and is susceptible to being interpreted as a standard that his office-dependent. and again that would require a fact-specific inquiry. you can't decide in advance, without knowing what has happened in a particular case, whether it's misconduct or not misconduct. it depends on the office. >> president chiu: colleagues, follow-up questions. supervisor farrell. >> supervisor farrell: thanks, president chiu. madam city attorney, to follow up on that line of questioning though, on one hand you say it should be easy to determine what is misconduct or not. on the other hand you say it's fact specific. i think commissioner hur's comments does that not invite subjectivity and gets us back to what the question is here, about clear delineation and having security and not the future
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abuse this potentially in the future, not to say anybody in this room or the current mayor, but anyone in the future, have a real clear sense of what this means. more about that because it seems very contradictory right now. >> you know, i guess the way to approach that is to point out that the simple fact that there are facts involved, and that you have to take the facts into consideration, and that there are many different permeantations that could possibly come up, doesn't make a rule too unwieldy, or too unpredictable or too arbitrary. one of the reasons why it's not arbitrary there is an entire body of case law to look to for guidance that has weighed many kinds of different kinds of misconduct against the professional standards and responsibilities with the person who committed it, and determined the situations where there is a
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relationship and there isn't a relationship. and, frankly, if you think about the facts of this case, it's not a hard call. does committing a crime of violence against your wife and pleading guilty to it, and suffering a three-year criminal conviction relate to the subject matter of a chief law enforcement officer, who runs the jails and helps administer the correctional system in san francisco? yes. yes. upon that is not an unpredictable, vague, surprised relationship. yes, there's a clear subject matter relationship. most cases will be clear. there will be cases on the boundaries where, you know, the decision-makers are going to have to exercise judgment. but there's a three -- there's a tripar tight system with checks and balances to make sure that the decision is considered, and there is also court review after
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that, in case the -- you know, in case the entire city gets it wrong. but the simple fact that there are facts involved isn't necessarily something that makes it too complicated or too unpredictable to deal with. that's how law is. haw is always the -- law is always the application of law to facts. >> supervisor farrell: okay. i want to get back to the timing question that you talked about earlier. there is an act that happened on december 31st, and then your brief talks a lot about subsequent behavior. and then an ultimate plea on march 12, i believe. i know you talked about and your brief talks about having not just the act on december 31 but the entire course of conduct be part of this -- you want us to consider the whole body of work, if you will.
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one question though i think it was competing between your brief and the attorneys for mr. mirkarimi's brief -- >> president chiu: speak into the mic, it's hard for folks to hear. >> supervisor farrell: competing arguments between briefs about the plea in and of itself. and i want to get a clarification. i understand the plea was a result of actions that occurred on december 31. but i want to be clear because your brief, to me, suggested that a plea, in and of itself, is another act of misconduct, or another criminal act. and if that were to be the case well then you'd have a plea based upon that criminal conduct and that would just go on forever. so i just want to be clear with you, i guess i could understand that there is an action on december 31, any consequences that result because of that kind of tie back in time to that
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original. you have to tolerate the consequences of actions. but i want to be clear that the action of a plea, in and of itself is not in and of itself an act of misconduct. >> i agree, that is not the position that the mayor is taking, that entering a plea of guilty is wrongful behavior. the effect though of pleading guilty to charges that the sheriff previously disputed or denied is that it fixes in time, with certainty, when it is that the city knew, and the mayor knew, and the voters knew, that our sheriff had in fact committed a crime. think, for example, there are various removal provisions or disciplinary provisions that say -- that are about conduct. you know, you're not allowed to commit this or that sort of conduct. but there's another series of prohibition that is tied to a
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conviction, right? you're not presumed guilty simply because you're arrested. you're not presumed guilty because you're denying your misdeed. you're only presumed guilty, you're only concluded to be guilty, when you plead guilty, or when you're found to be guilty. so the plea is actually something -- the guilty plea is not itself misconduct, but it attaches a time to the time that the city knew, and the mayor knew, with certainty, that the sheriff had committed an act that the mayor believed to merit removal. and, in fact, it wasn't until after he pled guilty and after he was sentenced that the mayor brought the official misconduct charges. >> president chiu: thank you. supervisor kim. >> supervisor kim: thank you. and, madam clerk city attorney, i appreciate your articulating
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the test because i think for me personally it's important either to develop a bright line rule or a test to guide future decisions when you use this tool of removal. and so you had articulated that under the test that either, one, that you used your office to commit this misconduct, or, two, that the relationship test, i agree with you i think that if you agree that this is the test, that the relation test would make it clear what is and what is not official misconduct. but then if i use your test, then any misdemeanor that our sheriff pleads to is official misconduct. is that correct? >> no, not necessarily. any misdemeanor that the sheriff pleads to would relate to the duties of his office, right? but the relationship to the duties of his office standing alone is not enough to underpin a finding of official
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misconduct. he also must be a public officer at the time of the conduct, and the conduct must be wrongful behavior as the ethics commission applied that, behavior that actually falls buy low the standard of decency, good faith, and right action expected of that public official. so it's not that any de minimus act of wrongful behavior or any possible misdemeanor conviction automatically is official misconduct for a sheriff. it is probably the case though that every misdemeanor conviction relates to the duties of the sheriff as a law enforcement officer. >> supervisor kim: so then you're adding to the test then the second portion of your test would be a relationship test, plus the ethics commission would have to determine that it falls below the standard of decency for that office. >in relationship
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to the sheriff's office, but if we were to assume that it is standards in relationship to your specific office, for the sheriff, it would be the relationship to his office, plus the -- what common sense would judge as falling before the standard of decency? this is where i get stuck is when does it fall below the standard of decency? a dui could be -- as a misdemeanor. you didn't hurt anyone per se, but you could have. you could have killed someone on the road, right? so i guess that's where i would like more clarity. when does it fall below the standard of decency for the sheriff, if we were to argue that there are standards? >> well, the mayor submitted the testimony of an expert, this person was the chief -- is william -- the chief of police of the san diego police department. and he testified about the
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ethical standards and the professional conduct standards that are expected of a chief law enforcement officer. now, commissioner hur mentioned that the chief testified that any misdeed at all would be official misconduct, if committed by a sheriff. i don't think that's entirely accurate. i think what the chief testified to is that -- is that the sheriff is expected, under the professional and ethical standards associated with his particular office, to avoid most forms of dishonesty, that behavior -- accountability, being a poor role model. there are many kinds of wrongful behavior that don't rise to the level of criminals that are wrongful for a sheriff. but at the end of the day, i don't think -- i think you're
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posing the more difficult question than the relationship test. your question is when is the -- when is the misconduct severe enough that we should consider it official misconduct. and that isn't a function of the relationship test. conduct may relate to the duties of office without being so severe that it should rise to the level of official misconduct. i think that that -- the charter does not offer you an answer to that question. i think that it's a case-by-case determination, that it's committed to the sound judgment of the mayor and the ethics commission and this board. i think that there -- >> supervisor kim: can i clarify that because i really want to understand the test as you understand it. >> okay. >> supervisor kim: so if it is the second prong of your test, the relationship test, that you said merely the relationship test is not enough because any misdemeanor relates to the
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duties of the sheriff's office. so it would be a relationship test, plus what the mayor and the ethics commission, and what we deem as falling below the standard of decency, and that is a case-by-case basis. >> yes, that's correct. and you would be guided by the standard of professional conduct that is specific to the office that the elected official holds. so it would be different for example for the tax collector and the sheriff. >> supervisor kim: let's keep the the tax collector out. if we are going to say that there're standards, which i'm not sure i agree with but if we agree it's standards relating to your specific office, specifically the sheriff's office, how do i delineate when it falls below the standards of decency? so what can guide us in the future when it's not a domestic violence? what can guide us in understanding when it falls below the standard of decency?
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that's what i'm trying to grapple with. >> i see. i think it is a discretionary decision. i think you can look to the case law, you can look to the norms of the city, the morass of the city. i think that it is, at bottom, a judgment call. there have been times, 50 years ago, when a sheriff committing a little arm grab truly would have been no big deal, right? the severity, the understood severity of that conduct has changed over time. and it may change again. i don't know. but there is no hard and fast, where you can look it up -- >> supervisor kim: and i appreciate your answer, but does that open us up to the vagueness issue, which may make that clause then unconstitutional because then a person may not reasonably be able to predict when their behavior is official misconduct or not?
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>> no. the courts -- when the courts have looked at the vagueness issue, they have not focused on the separate question that you're posing right now which is how do you know when the misconduct is severe enough to warrant the sanction. >> supervisor kim: i'm not saying that it's severe enough. you're saying we're supposed to use our judgment in determining when -- if it meets the relationship test, whether it falls below the standard of decency. so if that is the test, does it fall below my standard of decency, and that may change over time depending on who's on the ethics commission, who's on the board, who's the mayor, doesn't that open up the question to whether this is vague and therefore doesn't lend to a predictability for when an individual is supposed to determine whether this is official or not official misconduct? so not how severe the misconduct is but you're stating we're supposed to use our standards of
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decency, you're suggesting. >> i see where i've miscommunicated with you. this is why the standards of decency or the standard of conduct is position-specific. because it's not up to you, and your personal view of what the standard of conduct should be for the sheriff. it's actually a standard of conduct that is known to members of the profession of how a law enforcement officer and a chief law enforcement officer is expected to conduct himself or herself in the course of discharging his or her duties. that is a standard that's capable of discernment with the help of other people in the profession. >> supervisor kim: is the position of marijuana considered as falling below that standard. >> for whom? >> supervisor kim: you said that there was actually a point that it wasn't a moving target,
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right? that actually this could be discerned as falling below -- i don't want to put words in your mouth.
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this is a test for the placement. this is a test for the placeme placement. >> peace officer in general, and
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then what does the sheriff specifically oversee and not oversee. which is a better way of looking at it, or can we look at it either way? >> i think that both of those ones is - is -- offers some cla. if you want me to pick my favorite, that i think is more analytically better, the one that looks at offenses in relationship to the duties of a chief law enforcement officer more than which offenses will land you in county jail. the reason for that is something sometimes the more serious county jail, they'll land you in state prison or federalúgq÷ pri. and so i mean there are ways in which our local criminal justicy system is -- isn't set up to deal and to focus on the most serious5,px crimes.
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but we don't want to let those serious crimes go, and say they don't relate to the duties of office, just because they're more serious than our local criminal justice system tends to focus onoq%vdú> is it more appropriate to look at it from the perspective that the sheriff oversees violence programs and offenders or that a deputy sheriff or police officer who committed domestic violence in the same circumstances would be treated in x way. i think those are both appropriate considerations. as i said i think both lenses offer helpful information. and i don't think it's a choice really between either or. you have to consider the nature of the misconduct and how it relates to the duties of)rc$xff. and in this particular case frankly the sheriff isn't just like any line deputy, right?
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the sheriff should be held to a profession would be held to a higher standard than a line deputy. so a line deputy, who might merely be suspended for a particular offense, if someone higher up in the organizatio]m%ñ commits that same offense it's a more serious breach and they experience morecn serious discipline. >> now, speaking of that, i know the sheriff's attorneystçkc hai think taken a different perspective on that, and this is my interpretation ofnj6s( their argument which i'm sure they'll correct if i've misinterpreted@ it. even though the sheriff, you would think, someone in a/iy-z r up position would be -- than other folks on the line but i think the sheriff@t5ñ is an eled position that's something that's different, the(á&yt person thats been elected, the person can be recalled, the person can be -- so therefore, you don't just say
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because[hm,)pdu domestic violet in determination of a line deputy, in a you apply thaty#ñbo the sheriff. i'm not -- of you the validity or lack thereof but i'm just curious -- i know you touched on this somewhat in the briefing but if you could respond to that. >> sure. i think one thing that's important to be aware of is that section 15.105(a) the suspension and removal provision, it2,>nro alsorf ine privilege of officeeeeudyf/ ofd
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-- >> and it is an option and an alternative that the voters themselves placed at the city's disposal. so it's not as though elected
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officials can only be recalled, and that's what the people of san francisco contemplated. quite to the contrary. the people of san francisco put this tool in your hands to serve their purposes so that you will serve their will and not tolerate elected officials who tolerate elected officials who commitkw;yíj that this issue came up during the 1996 -- whatever that year was when the revised charterbc6s adopted. i can't imagine that this particular provision was a major aspect of that campaign. i don't know whether it was inwç the voter handbook, if there are arguments. i tend to doubt that was much of thean6ákñ focus. but is there a way to go about determining whether the voters, or the board, when it placed them on the ballot, believed that elected officials should be treated differently than appointed officials? in terms of determining official
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misconduct, given that elected officials have to stand for election and can be/>gq recalle? >> you know, there is no legislative history, there's no ballot history,v2l÷ that shedst on that question, or frankly any other question in regard+b%q÷ ts provision. what we have, and what we're case laws that existed at the time, the maz olm0ji>hp)j decis, his which was the only case that ever dealt with official explanation of what this was intended to mean. and that means, for us, that wew need to focus, and the mayor has focus, really, on the language of the charter itself as the best2 and there is no distinction whatsoever between the appointed and the elected official"jñ that this section covers in the
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charter. and that suggests that the them differently. >> thank you. >> president chiu: thank you.lq4 colleagues, any additional questions? at this time, why don't we now . >> good afternoon, mr. president, members of the board of supervisors. my name is davidfbtl] waggoner,i along with co-counsel shepherd kopp aregd6t representing sherif ross mirkarimi this afternoon. also with us is paula kiny